Feds Appeal Warrantless-Wiretapping Defeat

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Feds Appeal Warrantless-Wiretapping Defeat

The Obama administration is appealing the first – and likely only – lawsuit resulting in a ruling against the National Security Agency's secret warrantless-surveillance program adopted in the wake of the 2001 terror attacks.

A San Francisco federal judge in December awarded $20,400 each to two American lawyers illegally wiretapped by the George W. Bush administration, and granted their attorneys $2.5 million for the costs of litigating the case for more than four years.

Although U.S. District Judge Vaughn Walker had called it "unlawful surveillance," he went soft on the government because the authorities, the judge said, believed they were protecting the country in the aftermath of the worst terrorist attack on U.S. soil.

Walker did not declare the administration's so-called Terrorist Surveillance Program unconstitutional, and he declined to issue punitive damages to punish the government for wiretapping in the country without warrants. Instead, the judge granted the two spied-upon lawyers for the now-defunct Al-Haramain Islamic Foundation charity $100 a day for each of the 204 days their telephone calls were wiretapped beginning in February 2004, an amount they sought. In addition, they requested about $200,000 each in punitive damages, and the same amount to be awarded to the charity – all of which was denied.

The government lodged what is known as a notice of appeal (.pdf) with the judge's court late Friday. The government has about three months to file its opening brief with the San Francisco-based 9th U.S. Circuit Court of Appeals.

"That's when we'll know for sure what they are challenging," Jon Eisenberg, counsel for the Al-Haramain attorneys, said in a telephone interview Tuesday.

Under Bush's Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans' telephone calls without warrants if the government believed the person on the other end was overseas and associated with terrorism. Congress, with the vote of then-Sen. Barack Obama, subsequently authorized such warrantless spying in the summer of 2008.

As part of that program, the NSA in 2004 was intercepting the telephone communications of Al-Haramain lawyers Wendell Belew and Asim Ghafoor, who worked for an Oregon branch of the charity. The plaintiffs learned of the eavesdropping after the government mistakenly sent them records.

Both the Bush and the Obama administrations declared those records state secrets, so the documents were removed from the case. Walker allowed the case to proceed, based on other evidence of eavesdropping.